Category: New Technologies

A Proclivity for Plunder

The left and the right are united in wanting to regulate the internet by taking from their enemies and giving to their friends

You might think that Steven Guilbeault, environmentalist activist turned Canadian Heritage minister, and Josh Hawley, a leader of the will-to-power faction of the American right, don’t have too much in common. But, as it happens, they do: both think that, when it comes to regulating social media, plunder is the right policy. Even by the standards of the times, their positions are unusually crude. But they have at least the merit of exposing a widespread misunderstanding of the permissible bounds of the activity of the state.

Mr. Guilbeault, as Michael Geist has noted on his blog, is promising to throw more money at the Canadian media and cultural sector and, in order to do so, to “go and get that money where that money is. Which is web giants.” The current idea, as Professor Geist explains in another post, appears to be to charge Google, Facebook, et al. for linking to news articles listed or shared on their platforms, but there may be other chicanery in the works, such as requirements that these companies, or some others, spend some amounts determined by government fiat on content deemed Canadian, or that they give such content a prominence they otherwise would not.

This brings me to Mr. Hawley who, as Christian Schneider explains at The Bulwark, is trying to induce regulatory retaliation against Twitter and Facebook for blocking or limiting the sharing of a dodgy New York Post article. This demand is only the latest in a series of claims by people who used to believe in free speech and free markets (Mr. Hawley’s Twitter biography describes him as “constitutional lawyer” first and husband, father, and senator after that) that social media companies must be made to carry their or their ideological allies’ communications, and punished in case they limit these communications’ reach or prominence.

As you can see, these plans agree in the essential principle that successful platforms must either be requisitioned directly or have their bank accounts raided for the benefit of favoured constituencies. Only the details ― namely, the identity of the beneficiaries ― differ. But then again, once the principle has been accepted, the details can and will change as the partisan make-up of governments shifts. It would be a mistake to focus on the latter rather than the former, though as Mr. Schneider notes, it is a mistake that is quite common on American right: “[t]his may come as a shock to Republican senators, but a freshly empowered Biden/Harris [administration] will not likely make content moderation determinations premised on what produces the largest font of liberal tears.”

The principle on which Messrs. Guilbeault and Hawley operate is plunder. They are not alone, of course: so do countless other politicians, not to mention people who vote for them. As Frédéric Bastiat wrote in his great essay “The Law“:

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Plunder by a single person or a small band is criminal. Plunder by a monarch and a dictator is illegitimate. But plunder under colour of law by a democratically elected government ― why, that is simply public policy:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. 

By the way, lest you think that the belief that this sort of policy immoral is some peculiarly French radicalism, here’s Justice Chase, speaking in much the same terms in Calder v Bull, 3 Dall (3 US) 386 (1798):

An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. … A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. (388)

And lest you think that this is just American radicalism, let me also quote to your Sir William Blackstone, who wrote in his Commentaries on the Laws of England that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”, (124) and which “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property”. (129) The protection of these rights is the proper object of the law, so that

the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. (125-26)

Yet wanton tyranny and plunder is precisely what Messrs. Guilbeault and Hawley propose. Google, Facebook, Twitter, Netflix, and the others have laboured to create platforms and services that hundreds of millions of people want to use. Their creators started from very little ― the beauty of the internet is that barriers to entry are pretty low. But now, instead of imitating them and creating platforms and services of their own, others ― be they journalists whom too few people want to pay for the privilege of reading, artists whose work is of little interest to anyone, or conspiracy theorists ― demand to be given access to these platforms or to the revenue that they generate. And politicians are only too happy to oblige.

Why wouldn’t they be? They think it costs them nothing. They are wrong. As Bastiat points out, one odious consequence of the perversion of the law into an instrument of plunder is that, because people naturally tend to associate what is just with what is lawful, they come to think of plunder and oppression as just: “Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.”

The other danger of turning the law from protection of liberty and property to their destruction is perhaps the more dangerous because it is even more widespread:

As long as it is admitted that the law … may violate property instead of protecting it … Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.

This, and with increasing intensity, is what we are seeing. The stakes of politics are so high because it is admitted on all sides that the power of the winners is virtually untrammeled. The limits and restraints whose existence would in the past have been recognized, at least implicitly, such as the principle that a government shouldn’t simply raid the coffers of a particular company or handful of companies, let alone dictate what messages media ― social or otherwise ― should carry, are no longer recognized. On the one hand this is an escalation. On the other, nothing more than accepted principles being taken to their logical conclusion.

The prize of victory ― a permission to plunder ― is great. The threat of defeat is greater still. Because one expects to use power to engage in plunder oneself, one comes to expect one’s opponents to do likewise, at one’s expense. Losing an election means not simply that someone else gets to enjoy the honours of office, but that they get to despoil and silence you. Hence the desperation of the American right to hang on to power; but hence also the conviction of the Canadian left that it is entitled simply to take from those whom it does not like. These afflictions are not peculiar to countries or to parties. They proceed from the same source: the common conviction that there is no limit to political power, and in particular that plunder is part of the legitimate spoils of political office.

Now of course no one wants any of this to happen. Political schemers do not want moral decadence and civil war. But, they feel, they have no choice. If their preferred schemes do not get implemented, there will be no Canadian newspapers! No right-wing conspiracy theories on Twitter! They are convinced that if something is not done by force and the behest of a politician (preferably themselves), it will not be done at all.

And hence the state becomes the answer to all problems. Much of the right now believes this as fervently as does the left. As in Bastiat’s and in Hayek‘s time, this socialist mindset is spread across political parties. Yet as Bastiat wrote,

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Messrs. Guilbeault and Hawley have no faith in the ability of their fellow-citizens to take care of themselves. Cede to the siren songs of libertarianism, they think, and the sky will fall. Let the other party take power, and it will fall just as surely, if a little slower. They want to save humanity with their projects. Alas, but their preferred means of doing so is plunder. For all their undoubted differences, their commitments to civilization are no more different than those of Alaric the Goth and Attila the Hun.

Again, the projects of Messrs. Guilbeault and Hawley are only an unusually stark illustration of how much ― too much ― almost all ― of our politics is done. Very little of it is about establishing general rules that protect the rights of all equally. All that matters is ― as Lenin asked ― “who, whom?”. Who is going to plunder and silence whom? Who will be the winner and who the victim? For vae victis.

This is bad policy of course, but more importantly, dangerous and immoral. No person and no party, no matter the size of their majority, have the right to behave like this to their fellow human beings. As Bastiat said: “No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).”

Making a Monster

A report on the future regulation of the internet proposes giving the CRTC overwhelming and unaccountable powers

The final report of the Broadcasting and Telecommunications Legislative Review Panel, grandly entitled Canada’s Communications Future: Time to Act (the “BTLR Report”) has already attracted its share of commentary, much of it, but by no means all, sharply critical. As Michael Geist has explained, the report articulates

a vision of a highly regulated Internet in which an expanded CRTC … would aggressively assert its jurisdictional power over Internet sites and services worldwide with the power to levy massive penalties for failure to comply with its regulatory edicts. 

The discussion has mostly focused on the wisdom of the BTLR Report’s 97 recommendations for regulating the way in which Canadians engage with the online world, and also on their impact on freedom of expression. But one aspect of the report ― indeed, not merely an aspect but a fundamental element of the report’s underlying philosophy ― has, I think, received less attention, although Professor Geist alludes to it with his reference to “an expanded CRTC”: the report’s commitment to administrative power. This is, perhaps, a less obvious issue, but we should not underestimate its significance. If followed, the report’s recommendations would not merely expand the CRTC, but make into a bureaucratic behemoth. We must not let this happen.

The BTLR Report recommends multiple amendments to the legislation governing electronic communications in Canada that would tend to produce the “highly regulated internet” to which Professor Geist refers. Yet the striking thing is that most of the proposed changes do not describe the regulations that they call for with any precision. Instead, they say that the CRTC should be given vast powers to bring into being the report’s imagined brave new world.

The CRTC would be givens new powers to make rules of general application. Most ominously, it would be given the ability to regulate “media content undertakings” ― that is, all manner of entities creating their own content, whether written, sound-based, or visual, as well as those providing platforms for the content created by others, everything from a humble podcast to giants like Netflix, Facebook, and YouTube. These “undertakings” would be required to register with the CRTC, which would be

enable[d] … to establish classes of registrants, to amend registrations, and impose requirements — whether through conditions of registration or through regulations — on registrants (Recommendation 57)

These requirements could, in particular, include “codes of conduct, including provisions with respect to resolution mechanisms, transparency, privacy, and accessibility”. (Recommendation 74) At the same time, the CRTC would be given

the power to exempt any media content undertaking or classes of media content undertakings from registration in instances in which — by virtue of its specialized content or format, revenues, or otherwise — regulation is neither necessary nor appropriate to achieve media content policy objectives. (Recommendation 58)

In other words, the CRTC would decide ― with virtually no guidance from legislation ― both what the rules for “media content undertakings” would be an who would in fact have to comply with them at all. In particular it would be to

impose discoverability obligations on all audio or audiovisual entertainment media content undertakings, as it deems appropriate, including …  prominence obligations [and] the obligation to offer Canadian media content choices(Recommendation 62). 

The CRTC could impose similar requirements on “on media aggregation and media sharing undertakings” ― again “as appropriate” (Recommendation 73). The CRTC would also be directed to “intervene, if necessary … in order to respond quickly to changes in the communications services, improve transparency, and promote trust” in the face of technologies that “combine algorithms and artificial intelligence with Big Data” (Recommendation 93).

The CRTC would also be empowered, and indeed required, to regulate behaviour of individual market actors. It would be given the remit “to ensure that rates are just and reasonable” in “key electronic communications markets” (Recommendation 29). Indeed, in a rare instance of seeking to restrain rather than expand the CRTC’s discretion, the BTLR Report suggests that the ability of the CRTC to “forbear” from regulating the justness of rates should be eliminated (Recommendation 30). The CRTC would also be given the power to “regulate economic relationships between media content undertakings and content producers, including terms of trade” (Recommendation 61). In relation to CBC/Radio-Canada, the CRTC would be tasked with “overseeing all its content-related activities” (Recommendation 83).

But the report would not only have the CRTC make the law for the online world. It would also be given a substantial autonomous power of the purse. It would be given the power to designate “from an expanded range of market participants — all providers of electronic communications services — … required contributors to funds to ensure access to advanced telecommunications”. (Recommendation 25) Among the requirements the CRTC would be able to impose on those required to register … would be “the payment of registration fees” (Recommendation 57). It could, further, “impose spending requirements or levies on all media content undertakings, except those” mainly providing written news (Recommendation 61), “some or all” of which it could use to fund “to the production of news content” through “an independent, arm’s length CRTC-approved fund for the production of news, including local news on all platforms” (Recommendation 71).

The CRTC would acquire additional adjudicative powers too. For example, Recommendation 38 suggests that it should resolve disputes over the location of telecommunication infrastructure. More significantly, it would be both prosecutor and judge when “imposing penalties for any failure to comply with the terms and conditions of registration” imposed on “media content undertakings” (Recommendation 57), with “resolv[ing] disputes” among which it would also be tasked (Recommendation 61). Not that this adjudication would necessarily look like that done in the courts, since the BTLR Report would empower the CRTC “to issue ex parte decisions where the circumstances of the case justify it”. (Recommendation 75)

The prophet of the administrative state in Canada, John Willis, described administrative agencies as “governments in miniature”. One hesitates to describe the law-making, trade-regulating, money-grabbing CRTC envisioned by the BTLR Report as in any sense miniature, but it sure looks like a government unto itself, albeit a rather undemocratic one. In addition to the Commissioners who would exercise legislative, executive, and judicial powers, it would have a sort of representative body, the Public Interest Committee, “composed of not more than 25 individuals with a wide range of backgrounds, skills, and experience representing the diversity of public, civic, consumer, and small business interests, and including Indigenous Peoples”. (Recommendation 15) It’s not quite clear who would be appointing these people, but it certainly does not seem that, despite their supposed mandate to represent the public, they would be elected. Not to worry though: there would also be funding, out of fees collected by the CRTC, for “public interest interventions” (Recommendations 12 and 13), in case, I suppose, the Public Interest Committee doesn’t sufficiently intervene to represent the public interest. And, in addition to the prosecutorial and judicial functions of the Commissioners, there would be

an independent, industry-funded, communications consumer complaints office with the authority to investigate and resolve complaints from individual and small business retail customers of services covered by the respective Acts,

whose “mandate and structure” the CRTC would “create and approve” (Recommendation 96).

Meanwhile, outside control over this machinery will be be reduced. The Commissioners, who are currently appointed to renewable five-year terms, would instead serve for seven years, with no possibility of renewal (Recommendation 4). A limited form of Parliamentary supervision, the laying of government “directions” to the CRTC before the Houses of Parliament would be abolished in the interests of swift regulation (Recommendation 6). And, of course, given the vagueness of the legislative guidance to the CRTC and the breadth of its mandate, it is unlikely that the courts would intervene much to police its regulatory activities.

To sum up, the CRTC would be put in control, with very few restraints, of Canadians’ interaction with the online world, and with one another. Who can speak online and on what conditions ― the CRTC would have control over that. How much they have to pay for the privilege, and where the money goes ― the CRTC would have control over that. How disputes among them, and between them and the CRTC itself, are to be resolved ― the CRTC would have control over that too. The only “checks” on it would come from handpicked representatives of the “public interest” as the CRTC itself conceives it ― not from Parliament or the courts.

The empowerment of the CRTC proposed by the BTLR Report is, of course, no accident. It proceeds from a specific philosophy of government, which the Report describes quite forthrightly. According to its authors,

The role of government is to establish broad policies. The role of regulators is to implement those policies through specific rules and in a transparent and predictable fashion. Legislation is the key instrument through which government establishes these policies. It should provide sufficient guidance to assist the CRTC in the discharge of its duties, but sufficient flexibility for it to operate independently in deciding how to implement sector policy. To achieve this, legislative statements of policy should set out broadly framed objectives and should not be overly prescriptive. (46-47)

In other words, government ― Parliament is left out of the equation entirely, as if it has nothing to do with legislation ― should mostly leave the CRTC alone. Indeed, it is important to preserve “proper balance between the government’s role in policymaking and the regulator’s role in implementing those policies independent of government influence”. (47) And, judging by the amount discretion ― to make law and dictate the behaviour of individual organizations, to levy fees and spend money, to identify, prosecute, and condemn alleged offenders and to adjudicate disputes ― the BTLR Report would vest in the CRTC, the “balance” is really all on the side of the regulator.

This is the philosophy the BTLR Report would impose on the 2020s and, perhaps, beyond. It ostensibly envisions “the CRTC’s shift toward a future-oriented, proactive, and data-driven style of regulation”. (44) But its ideology comes, not from the future, but from a distant and, as article on “The Depravity of the 1930s and the Modern Administrative State” by Steven G. Calabresi and Gary Lawson about which I blogged here shows, detestable past. As Professors Calabresi and Lawson explain, President Franklin D. Roosevelt’s

administration and a compliant Congress created a vast array of new “expert” regulatory agencies, many of which followed the “independent” model by insulating the agency heads from at-will presidential removal, and many of which contained (and still contain) statutory authorizations to the agencies so vague as to be literally meaningless. … These agencies, controlled neither by the President nor by Congress, made life-altering decisions of both fact and law subject only to deferential judicial
review. (829)

This is the governance model proposed by the BTLR Report. Its original backers

fundamentally did not believe that all men are created equal and
should democratically govern themselves through representative institutions. They believed instead that there were “experts”—the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls—who should administer the administrative state as freely as possible from control by representative political institutions. (829)

(For more on the beliefs of 1930s pro-administrativists, see also this post by co-blogger Mark Mancini.) Judging by their proposals, the views of the authors of the BTLR Report are rooted in just this kind of thinking. They mistrust the free market as well as democratic institutions, and want fundamental decisions about what is, by their own account, an unbelievably important part of our lives to be made by officials deemed wiser than everyone else.

And if the philosophy behind the BTLR Report’s proposed future goes back a mere century, its institutional vision is considerably older still. In fact, at the risk of sounding a bit like Philip Hamburger (which, after all, isn’t a bad thing!) I would argue that it amounts to a counter-revolution against the 17th-century subjection of executive authority to law, and a reversal of the the post-1689 constitutional settlement. To be sure, everything the BTLR Report proposes to do would be covered by the fig leaf of ― deliberately vague and unconstraining ― legislative authority. But in substance, the proposals amount to executive law-making contrary to the Case of Proclamations, executive dispension from the law contrary to article 2 of the Bill of Rights 1688, executive adjudication contrary to the case of Prohibitions del Roy, and executive taxation contrary, this time, to article 4 of the Bill of Rights. James I and James II would be proud.

So when we hear that “this time it’s different” ― that the online world is like nothing we’ve seen before ― that its actors “pose a unique set of challenges for contemporary regulators”, as Paul Daly argues ― and that this justifies the sort of overwhelming regulatory response recommended by the BTLR Report, we need to be skeptical. For all that the issues raised by the modern world are ― now as a century ago! ― said to be quite unlike anything that came before, the solutions offered are the same old. More unfettered bureaucratic power is always said to do the trick. When all you have is a hammer…

More recently, a very different philosophy seemed, however briefly, to prevail in the online world. In the 1996 “Declaration of the Independence of Cyberspace“, John Perry Barlow proclaimed:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

The Declaration isn’t much more remembered than the term “cyberspace” itself, nowadays, and the weary giants whom Barlow was taunting have come after the cyber-libertarians like Pushkin’s Stone Guest. If the authors of the BTLR Report get their way, the we would indeed be governed, to keep with the 17th century English political thought, by Leviathan himself.

NOTE: A petition to “the Government of Canada to Reject the recommendations regarding the legislation and regulation of free speech, free expression and the free press made by the” BTLR Report is open for signature at the House of Commons website. Please sign it!

Modern Mailmen

Back-of-the-envelope thoughts on what the history of postal services and their competitors can teach us about the regulation of social media

This post is co-written with Akshaya Kamalnath[*]

One of us (Akshaya) recently visited the Postal Museum in Washington DC. Looking at the historical development and role of the postal services in the US brought to mind our modern forms of communication—social media platforms—and their value, especially in terms of free speech. We often associate free speech with the press but, as a quote by Nat Hentoff in the Postal Museum informs visitors, it was the post that brought news to the press and then brought newspapers to the public.

Today, social media platforms like Facebook, Twitter and Google (YouTube) play a role similar to that of the postal service by acting as intermediaries for communication. They are, in a sense, the high-tech descendants of the postal services. The post physically transports letters and parcels from one person to another, while Facebook electronically transmits speech that one person wants to convey to others. The tech platforms have just made it easier to convey messages to a number of people at once. Tech platforms also help transmit news content—just like the post delivers newspapers. In fact, the use of postal services to deliver newspapers was considered the most important information technology in the late 1700s.  

As lawmakers are talking about regulating speech on social media platforms, a comparison with postal services is instructive. The postal service is not required or even allowed to scrutinize people’s mail and make decisions about whether or not to deliver it. So why should its technologically more advanced relatives have to identify and remove misinformation or statements supposed to be “hate speech”? Of course, social media can be used to commit crime, including engaging in hate speech as defined in the criminal law of some countries including Canada. The post collaborated with law enforcement where necessary to investigate fraud and other criminal activities and social media companies should do the same. Social media companies should obviously comply with court orders if someone is found to have committed a crime. The issue is whether they should be expected to engage in preventive enforcement.

The further question about whether we should require these tech platforms to service all users equally, like the postal service is expected to, is more complicated. This is because the dominant postal service is usually run by the state, while the tech platforms like Facebook are run by corporations in the private sector. While we can ask a state-run enterprise to provide services to all equally, more thought needs to be given before private enterprises are held to the same standard. Yet, government regulation is being considered because, among other things, there are complaints about the spread of what activists deem to be “hate speech”, and also complaints about the silencing of conservative voices on social media.

Overall, we have to tread carefully with government regulation. In addition to interfering with their freedom of expression and association, heavy-handed regulation of online platforms would have the effect of making it harder for new and, at least initially, smaller players to enter the social media market, which ought to be the real solution to the concerns about the existing platforms’ behaviour. It will be highly unlikely that we see university students create the next Facebook or Google from their dorm rooms or garage if regulation becomes burdensome.

The history of the postal services can again serve as a warning to resist government-backed monopolies, which Facebook and the few other social media giants can in effect become if government regulation becomes burdensome. It is telling that the Postal Museum makes no mention of Lysander Spooner who tried to set up a private postal service in 1844.

Spooner argued against state monopoly over the postal service, saying:

The present expensive, dilatory and exclusive system of mails, is a great national nuisance—commercially, morally and socially. Its immense patronage and power, used, as they always will be, corruptly, make it also a very great political evil.

He added (referring to the US Constitution’s First Amendment protection for free expression) that

any law, which compels a man to pay a certain sum of money to the government, for the privilege of speaking to a distant individual, or which debars him of the right of employing such a messenger as he prefers to entrust with his communications, “abridges” his “his freedom of speech”.

Although Spooner’s business was eventually forced to close by a tightening of legislative protections for the government post’s monopoly, it had the temporary impact of bringing down the cost of postal services.

Government regulation requiring Facebook and other social media platforms to set up a complex decision-making system to enforce restrictions on what messages they can be used to convey will increase the cost of operating such platforms. Any new platform will be required to spend heavily on human moderators, artificial intelligence systems capable of assisting them, or, likely, a combination of the two. While established platforms like Facebook will not find it difficult to invest in complying with such regulations, the cost will be prohibitive to outsiders who want to set up competing social media platforms. This should explain why Mark Zuckerberg, CEO of Facebook, is in favour of government regulation.

Heavy regulation of speech on social media also runs the risk of government using social media to their political advantage—a modern version of the political abuses of the power over the transmission of ideas that Spooner denounced, which we are already seeing in some countries. In France, it emerged that the President’s office circulated a doctored video on social media, despite the President himself being committed to censorship of “fake news”. In Austria, a politician asked Facebook to take down a post calling her a “lousy traitor of the people”, a “corrupt oaf” and a member of a “fascist party” none of which amounted to hate speech under Austrian law.

The converse possibility, regulation requiring Facebook and other platforms to host all users irrespective of their opinions, would also be problematic, because it would infringe the platforms’ ability to hold and act on their own views, as well as to provide an environment in which they think their customers will be happiest. Just like restaurants may ask misbehaving patrons to leave so others may enjoy their dinner, social media platforms should be able to decide where to draw the line so that a large majority of their users are able to enjoy the platform. Or, to return to the postal analogy, suppose a private delivery company insisted on reading the letters or examining the content of the packages we wanted it to deliver for us and refuse to deliver those it deemed morally objectionable. The appropriate response for a person who did not want his or her letters read, or who submitted to the exercise and had a letter rejected, would be to go to a competitor—or to establish one, like Spooner did—rather than to force his message on a party unwilling to deliver it. Similarly, when Facebook or other online platforms set out standards with regard to the type of content and members it will allow, they make specific choices as private actors, and should be free from the government’s interference.

All this is not to say that the large social media platforms should do nothing to address the problems associated with their use. Companies like Facebook are under pressure from their shareholders and consumers. Facebook’s shareholders recently demanded a change in management since the current management had not dealt with misinformation and hate speech. Even though Mark Zuckerberg holds the majority voting power in the company, the shareholder proposals convey a message. Facebook’s management is aware of the market pressures and has taken a number of measures, including releasing its public content-moderation rules and a proposal for an independent body to hear appeals regarding decisions by Facebook regarding content moderation. (That said, presumably, the independent body would still be working under guidelines that Facebook has drafted or at least is in agreement with.)

While not perfect, these are voluntary responses to market sentiment against problems of misinformation and censorship that big social media companies have chosen to invest in. Facebook’s taking such measures does not preclude a new company from starting a modest platform without having to invest in these systems at the outset. As they get bigger, the new competitors could devise their own solutions on different principles, rather than having to follow a pattern imposed by legislation, not only enacted at Facebook’s suggestion but, quite possibly, drafted based on its proposals. Just like new courier companies have differentiated themselves from postal services based on GPS tracking, expedited delivery or convenient package pick-up options, new social media companies may exploit gaps especially if the big social media companies preclude certain views on their platforms.

[*] Dr Akashaya Kamalnath is a corporate and insolvency law scholar. She is currently teaching at Deakin University, but will be joining the Auckland University of Technology Law School shortly. You can read her papers here, and follow her on Twitter.

The Dunsmuir Decade: A Post-Script

In the wake of the #DunsmuirDecade, updated thoughts on blogs and doctrine

The Dunsmuir Decade symposium is over. It’s been great fun to host, and has provided a great deal of food for thought for me and, I am sure, for others. I might come back in future posts to some substantive points made by the contributors. And of course I need to return to my regular constitutional programming, which I have held in abeyance all this while. But before I do so, I wanted to venture a meditation on what the symposium itself means or represents.

Among the many kinds of writing that legal academics produce, there is a special genre of writing about legal writing; and one of its sub-genres is writing about legal blogs. It asks questions such as whether blogs deserve to be considered among the media through which legal scholarship can be communicated; their distinctiveness, if any, among such media; the way, if any, in which blogs can meet the needs of the legal profession or of others with whom it interacts in one way or another; and of course the ways in which blogs can or ought to change for answers to these questions to become more satisfactory. Among the notable Canadian contributions to this literature are “Legal Academia 2.0: New and Old Models of Academic Engagement and Influence” by Paul Daly ― the co-host of the Dunsmuir Decade symposium ― and Édith Guilhermont’s “La contribution des blogues juridiques à la connaissance, à la critique et aux transformations du droit“. I too have occasionally mused on the subject of blogging, and of its relationship to writing about law more broadly.

In particular, after attending a colloquium on “The Responsibility of Doctrine” or, rather, “La responsabilité de la doctrine” hosted by McGill’s Paul-André Crépeau Centre for Private and Comparative Law, I wondered about the complicated relationship between the meanings of the word doctrine in English and in French ― “doctrine” and “la doctrine” ― and also about the contribution that blogs could make to either or both of these things. I hope the readers will forgive me for quoting myself at considerable length, because, as I will explain below, I think that what I wrote then is directly relevant to the Dunsmuir Decade symposium:

The important thing about both [doctrine and la doctrine] is that they are the products of, and indeed very nearly synonymous with, collective thinking about the law. La doctrine, as I already mentioned, is a set of writings, a discourse involving multiple authors. … And doctrine is, of necessity, derived from a multitude of judicial decisions rendered over time. A person can be un auteur de doctrine, and a judicial decision can illustrate a legal doctrine, but doctrine and doctrine are both, fundamentally, ongoing conversations.

These conversations can be noisy and perhaps chaotic, since they involve multiple speakers addressing multiple subjects ― judges, scholars, and lawyers trying to figure out not only what the law is but also, at least some of the time, what it should be. (The critical component of la doctrine is often mentioned in its definitions. But those of you who have listened to Justice Stratas’ lecture [on “The Decline of Legal Doctrine“] or read my post about it, will also recall that he said that the judges who are “doctrinal” are not only interested in what the rules are, but also, perhaps, in tweaking in modifying them.) They yield no permanent truths and no irrevocable agreements, and as new voices enter both their vocabulary and their contents shifts, usually imperceptibly, sometimes abruptly.

But meandering and sometimes cacophonous though these conversations are, they are the visible, and therefore the imperfect, manifestation of the jurists’ quest to make the law coherent and conducive to the public good through argument and shared deliberation. Common lawyers, most famously Chief Justice Coke, called this quest the “artificial reason” of the law. While I am not aware of an exact civilian equivalent, I believe that Portalis, for example, with his insistence that “[l]aws are not pure acts of power; they are acts of wisdom, justice and reason,” and that “[t]he lawmaker … must not lose sight of the fact that laws are made for men, and not men for laws” would have shared its spirit.

At least some of Friday’s presenters insisted that la doctrine is our joint responsibility as juristes … So did Justice Stratas in his lecture, as called upon judges, lawyers, and scholars alike to devote ourselves to doctrine, and on all of those who write about the law to take doctrine seriously. … The web 2.0, and especially the blogs, are already a part of the doctrinal conversations, and will be an ever more important one in the years to come. Justice Stratas not only mentioned a couple of bloggers (specifically, Paul Daly and yours truly, for which I am very grateful to him) as examples of legal writers who take doctrine seriously, but also kindly commented on my post about his lecture. This sort of exchange was simply impossible until a few years ago, and I suspect that, for many, it still seems inconceivable. But I am hopeful, and pretty confident, that in time it will no longer seem so. … [I]f doctrine and doctrine are to flourish in the 21st century, they will need to remain open to new forms, and that it will not do to ignore these new forms simply because they are unfamiliar.

One of the joys of the Dunsmuir Decade symposium for me ― and the reason I am so tediously repeating myself ― is that it was, I think, a perfect demonstration of what the synthesis of doctrine and doctrine that I had in mind looks like, and of the blogs’ contribution. It was an instance of collective thinking about the law in an attempt to figure out where the law stands, how it got there, and whither it ought to go if it is to fulfill the requirements of coherence and orientation to the public good. It was a conversation that involved a variety of voices ― not just academics but also legal practitioners and judges (the first time, I think, that Canadian judges have published blog posts!) ― and that was suitably “meandering and cacophonous”, perhaps to the bemusement of Justices LeBel and Bastarache, who kindly provided its conclusion. But while we have surely not arrived at any final truths about administrative law, I am pretty confident that we have, together, strengthened its “artificial reason”.

And of course this conversation happened on blogs ― and I doubt that it could have happened elsewhere. Blog posts, though the Dunsmuir Decade ones were admittedly long by the standards of the medium, allow one to develop an argument to a much greater extent than a 15-minute conference presentation, yet are still easier both to write and to read than full-blown journal articles or book chapters. The blogging symposium thus has advantages over both the traditional conference, in the depth of the reflection that it makes possible, and over, say, an edited collection of essays, in terms of both breadth ― and over both in terms of the cost in time and money for both organizers and participants.

All this is not to say that these more longstanding fora for doctrine and doctrine have lost their relevance. As Prof. Daly and Dr. Guilhermont also noted, the new media, including the blogs, are complementary to the old; they will not fully replace them any time soon, if ever. But as they have noted too, and as I did, new forms, including especially blogs, will be an essential support for doctrine and doctrine in the years and decades to come. I think that the Dunsmuir Decade symposium demonstrated that this was not just a futuristic vision of a few enthusiasts, but the reality here and now.

Ceci est-il une conversation?

The Supreme Court holds we can expect our text messages to remain private, even on other people’s phones

Last week, the Supreme Court released its eagerly-awaited judgment in R v Marakah, 2017 SCC 59, holding that a person had standing to challenge the admissibility of text messages to which he was a party but which the police had seized from another’s cell phone. The Chief Justice wrote the majority opinion, in which Justices Abella, Karakatsanis, and Gascon concurred. Justice Rowe wrote a brief concurrence, raising some concerns about the future implications of the majority opinion, with which he nevertheless agreed. Justice Moldaver, with the agreement of Justice Côté, wrote a fierce, strongly-worded dissent.

Section 8 of the Canadian Charter of Rights and Freedoms provides that “[e]veryone has the right to be secure against unreasonable search or seizure”.  This right applies when a person has an objectively reasonable “expectation of privacy” in the thing or information that is the object of the search or seizure. There is no question that Mr Marakah wanted and expected his exchange of text messages with an accomplice in a weapons-trafficking venture to remain private. But was he entitled to expect that the police would not read these messages on that accomplice’s phone?

The majority and Justice Rowe think that he was. As the Chief Justice put it, the

interconnected web of devices and servers creates an electronic world of digital communication that, in the 21st century, is every bit as real as physical space. The millions of us who text friends, family, and acquaintances may each be viewed as having appropriated a corner of this electronic space for our own purposes. There, we seclude ourselves and convey our private messages, just as we might use a room in a home or an office to talk behind closed doors. [28]

The information exchanged in these nooks and crannies of cyberspace is, potentially, highly private, and indeed “[i]ndividuals may even have an acute privacy interest in the fact of their electronic communications”. [33] Crucially,

this zone of privacy extends beyond one’s own mobile device; it can include the electronic conversations in which one shares private information with others. It is reasonable to expect these private interactions — and not just the contents of a particular cell phone at a particular point in time — to remain private. [37]

The fact that we might not control all the devices through which this information is accessible is not especially important. It is the information exchanged, the conversation, that is the subject of the expectation of privacy, not whatever device might allow one it view it. And even the fact the person with whom one is texting could disclose the fact or the content of the conversation does not allow the state to read it.

Justice Moldaver disagrees. For him, control is a key factor in the analysis. Justice Moldaver writes that “the reasonableness of a person’s expectation of privacy depends on the nature and strength of that person’s connection to the subject matter of the search”, and “[w]here an individual lacks any measure of control, this serves as a compelling indicator that an expectation of personal privacy is unreasonable”. [98] Justice Moldaver gives a number of examples: DNA in one’s body is private, but DNA traces left on, say, the body of a victim of a crime are not; thoughts recorded in a private diary are private, but not those publicly shared online. [116] While control does not require ownership or exclusivity of access, a lack of control means that information is not in a meaningful sense private.

When it comes to conversations, including conversations conducted by text messaging, Justice Moldaver is of the view that one loses control over what one has said once one has said it. What one’s interlocutor’s phone records is “an independent record”, [128] similar to the notes one might make after a spoken conversation, and within the interlocutor’s exclusive control. Evesdropping on an ongoing conversation, or intercepting text messages as they are being sent, violates a reasonable expectation of privacy. By contrast, just as each party to a conservation is free to share a record or recollection of it, and his or her interlocutor can (subject to any applicable privacy legislation) have no reasonable expectation of privacy in that record, so it is also with a “record” of a conversation conducted via text messaging.

Here, as I see it, is one important point of disagreement between the majority and the dissent. Both are ostensibly agreed that what Mr. Marakah had, or lacked, a reasonable expectation of privacy — or, in other words, “the subject matter of the search was Mr. Marakah’s ‘electronic conversation’ with” his accomplice. [17; 111] But it seems to me that while the majority does indeed approach the case as one about the privacy of a conversation, the dissent sees it as being not about a conversation as such, but rather about a record of a conversation. To repeat, Justice Moldaver accepts that “an electronic conversation” would be private; it could not be intercepted without due authorization. But the messages stored in the cell phone of one of the parties to the conversation are not the same thing. They are like the notes one of the interlocutors took. (Hence the title of this, in reference to René Magritte’s notorious The Treachery of Images, a.k.a. Ceci n’est pas une pipe.) As Justice Moldaver suggests, we can expect not to be eavesdropped on, when having a private conversation, but not necessarily that the contents of that conversation will never be revealed to third parties. So the majority decision makes sense in light of how it understood the issue, and the dissent makes sense in light of its author’s different understanding of the case.

But which of them is correct? I personally find this a very difficult question. A number of legal issues arising out of new technologies, broadly speaking, have to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles. One of my very early posts, for instance, was about a case that concerned an attempt by a university to punish students who ranted about their professor on Facebook. Student rants about a professor are nothing new, but the fact that they were made online rather than over beers left a record for the authorities to look into and to try (unsuccessfully in the event) suppressing. In a different way, the disagreement about the way to characterize text messaging “conversations” — often created in a spontaneous way, as if the parties were together in the same room, but a permanent record for the police to look at later — exemplifies the same set of difficulties. (This might come out most clearly in Justice Rowe’s brief concurrence.) On balance, though, I am inclined to think that Justice Moldaver’s view makes more sense. The idea of a never-finished conversation, to which one is always an ongoing party, and in which one is permanently entitled to expected privacy, which seems implicit in the majority’s approach, doesn’t quite make sense to me. This is a very tentative thought, however, and a minority view, I gather.

Beyond the characterization of “electronic conversations”, the Chief Justice and Justice Moldaver also disagree about the policy implications of the Supreme Court’s decision. In particular, Justice Moldaver worries that police will not be able to access, without a warrant, “electronic conversations” that are voluntarily tendered to them by one of the parties, even when the conversations are themselves crimes, and the parties disclosing them to the police are victims. A person may, for example, receive a threatening text message, and want to show it to police officers, but it is not clear that the police will be entitled to look without judicial authorization. At best, this will complicate the work of the police; at worst, serious crimes will go unpunished. The Chief Justice responds that these difficulties can be dealt with if and when they arise. For his part, Justice Rowe is not so sure, and I take that it is because he ” share[s] the concerns raised by Justice Moldaver as to the consequences of this decision” [89] that he goes to the trouble of writing separately.

A lot, then, remains to be decided. Privacy issues have been consistently difficult for the Supreme Court, or at any rate more consistently divisive than most others. I find these issues difficult too, so I have sympathy for judges on both sides. That the majority wants to be protective of privacy in a way the majority in R v Fearon, 2014 SCC 77, [2014] SCR 621 (which I criticized here) was not is heartening. (Some people on Twitter were wondering how many of the judges had got smartphones in the meantime. A cynical question, perhaps, but I’m not well placed to critcize those who are cynical about judges, am I?) The question now is whether the pendulum has swung too far in the direction of privacy. It might have, but we will have to wait to find out.

All about Administrative Law

Justice Stratas’ remarkable endeavour to improve our understanding of administrative law

Justice Stratas recently posted a most remarkable document on SSRN. Called “The Canadian Law of Judicial Review: Some Doctrine and Cases“, it is nothing less than a comprehensive overview of the concepts, principles, and rules of administrative law in an accessible format, for the reference of judges, lawyers, scholars, and students. While Justice Stratas cautions that it “is not meant to be complete” (1), and notes ― with perhaps just a little optimism ― that it “can be read from beginning to end in one short sitting” (7), the wealth of information it contains is really astonishing.

Here is how Justice Stratas himself describes what he is doing:

 It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review.

Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available).

The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers’ understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

(SSRN abstract; some paragraph breaks removed)

Justice Stratas’ work (I am not sure how to describe it ― it is neither an article nor a case- or textbook; in a way, it is perhaps a super-blog-post; more on that shortly) is of course an outstanding service to the legal profession writ large. But it is also, I think, a challenge to us, or indeed several challenges at once.

For one thing, as he did in his lecture on “The Decline of Legal Doctrine” last year, which I commented on here, Justice Stratas calls upon us to devote ourselves to shoring up this weakened edifice. As he notes in his introduction, in order to treat litigants fairly, judges must apply

ideas and concepts binding upon them, a body of doctrine. … If decisions are made because of an individual judge’s sense of fairness or justice, the appearance, if not the reality, is that the decision sprung from personal or political beliefs of an unelected person. (4)

Here, Justice Stratas now says, is a restatement of the ideas and concepts that structure administrative law. One challenge for us simply to help him with it: “contributions of case law, articles, comments and input will improve this document and are most welcome”. (9) But there is a broader challenge here too, especially to those of us in academia. If a sitting judge is able to produce such a statement in a notoriously tricky and unsettled area of the law, why haven’t we done something similar in others?

Now, of course there treatises and textbooks in many areas of the law, and part of what prompted Justice Stratas to put together his document, which is based on PowerPoint presentations he uses to speak on administrative law, is the dearth of “new, up-to-date texts on administrative law, perhaps reflecting its currently unsettled nature. Who dares write about a landscape that is shifting so much?” (6) But Justice Stratas challenges us on the form as much as on the substance. He forces us to think about the media we use to present legal doctrine, even we do write about it.

Justice Stratas points out that

[b]ack in the day of published law reports, knowledgeable editors, skilled in the area, could pick out the cases that matter. These days, however, most lawyers work online, not from the law reports, encounter the flood of cases and somehow have to separate the wheat from the chaff. Alas, most don’t have criteria in mind to do that. (5)

Meanwhile, loose-leaf services, though informative as to particular cases, might tend to “encourage us to think of administrative law as a bunch of particular rules that govern particular topics”, (6) without thinking about underlying concepts and their inter-relationships. (Justice Stratas’ concerns here echo those of Jeremy Waldron, whose work emphasizes the “systematicity” of law, and seeks to push back against treating it as just a collection of unrelated rules and commands.)

And then, of course, there is a concern about access to justice, or to law anyway. In an age in which, on the one hand, many litigants represent themselves, and on the other, those who take interest in Canadian administrative law are sometimes half a world away from a Canadian law library, and also in an area in which the resources even of many practising lawyers are likely to be limited (I’m thinking, for instance, of the immigration bar), it would arguably not be enough to point people to books even if very good ones existed. Justice Stratas writes that

[t]he law should be accessible to all: other judges, counsel, academics, law students, parties and self-represented litigants. Online publication and availability for free encourages this. Hence this document and the location where I have posted it. (6)

If we accept the doctrinal mission with which Justice Stratas wants to invest us, we must think about the form of our work as well as its content. I’m not sure that we must quite imitate Justice Stratas. His document has some advantages. It is relatively easy to access, concise, and convenient in its abundant use of hyperlinks. But I think that a website having the same content would be even easier to access than a document one must download from SSRN, and easier to navigate than a pdf through which one must scroll. Needless to say, I am not criticizing Justice Stratas. Again, we owe him greatly, and I, at least, would probably not have started thinking about this without his nudge. But if can improve on his first attempt in this regard, then we should.

Last year, I wrote about about a symposium at McGill about the “Responsibility of Doctrine”. Musing on the English/common law and French/civilian senses of the word doctrine/doctrine, I concluded that if these ongoing conversations about the law “are to flourish in the 21st century, they will need to remain open to new forms, and … it will not do to ignore these new forms simply because they are unfamiliar.” Justice Stratas makes a remarkable contribution to legal doctrine, in both of its senses, in an unfamiliar form. I hope that the legal community will pay all the more attention to it for this reason.

H/t: Patrick Baud

Maneant Scripta

The Supreme Court protects its sources from “link rot”

This will be an unusual post. First, it will be short. Second, it will praise the Supreme Court of Canada, for a change. Some years ago, I wrote here about the problem of “link rot” as it affects judicial decisions. Courts refer to online materials ― sometimes even blog posts, though I don’t think the Supreme Court of Canada has done that yet ― and provide references to these sources in their reasons. Unfortunately, the online addresses of these sources ― the URLs that enable the readers to find them ― can change. Indeed, the materials can simply be taken down. Finding the sources on which judges rely becomes difficult in the former case, and impossible in the latter. Unless, that is, the courts actually do something about it. And now the Supreme Court has.

Here is the Court’s announcement:

Recognizing that web pages or websites that the Court cites in its judgments may subsequently vary in content or be discontinued, the Office of the Registrar of the SCC has located and archived the content of most online sources that had been cited by the Court between 1998 and 2016. These sources were captured with a content as close as possible to the original content cited. Links to the archived content can be found here: Internet Sources Cited in SCC Judgments (1998 – 2016).

From 2017 onward, online internet sources cited in the “Authors Cited” section in SCC judgments will be captured and archived.  When a judgment cites such a source, an “archived version” link will be provided to facilitate future research.

The Supreme Court of the United States has maintained an archive of “Internet sources cited in opinions“, albeit only going back to 2005, for some time now. Having taken a quick look at the websites of the UK and New Zealand Supreme Courts, I cannot find any equivalent archive, though perhaps I haven’t searched carefully enough.

It is great that the Supreme Court of Canada follows, and indeed improves on, the initiative of its American counterpart, and rescues its sources from oblivion. This is going to be very helpful to anyone ― a journalist, a researcher, or just a citizen ― who is interested in understanding what information the court relied on in making its decisions. As I wrote in my original post on this issue, the problem of “link rot” in the Supreme Court’s decisions was quite serious:

Of the links in the five oldest cases to cite any, not a single one still works, though one … leads to an automatic re-direct, and so is still useful. The rest lead either to error messages or even to an offer to buy the domain on which the page linked to had once been posted (a page belonging  to the BC Human Rights Commission ― which has since been abolished).

The Court’s effort to remedy this problem is to be applauded.

Selfie Slow-Down

I have already blogged about one American judicial decision on the constitutionality of a “ballot selfie” ban, which has since been upheld on appeal by the Court of Appeals for the 1st Circuit. And I have also written about the history of the secret ballot, which in my view explains why measures to protect ballot secrecy ― including bans on something that might at first glance appear quite innocuous, like a selfie showing for whom a person has voted ― are actually more important than they seem. Another American decision issued last week, this one by the Court of Appeals for the 6th Circuit, provides some additional food for thought on this issue.

Much of the discussion in Judge Sutton’s majority opinion in Crookston v Johnson is procedural. The case came up as an application for a preliminary injunction preventing the enforcement of Michigan’s prohibition on “exposing marked ballots to others”, (1) and Judge Sutton concludes that it is simply too late to grant one now in anticipation of the elections to be held on November 8. The people who will be running the election have already been trained and have received specific guidance on photography at the polling stations. Changing the rules at this point would create unnecessary confusion. So Judge Sutton does not rule on the merits of the case, which will be assessed later, assuming the applicant still cares. (This situation is reminiscent of the Canadian cases about election debates, which are invariably brought on an emergency basis when the debates are set up, and invariably abandoned before a full merits hearing once the election has taken place.)

But Judge Sutton does make some comments that bear on the merits of the dispute, and, although preliminary, these comments strike me as quite sensible and interesting. One observation is that

many Michigan voting stalls … are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene. (4)

My memory of Canadian voting stalls is a bit hazy ― I skipped the last election because I couldn’t tell which of the parties was worst ― but something like that might be true of them too. And indeed, even if it is not in any given case, it is worth thinking about whether our voting arrangements must actually be planned so as to cater to the “needs” of people wishing to snap a selfie.

Another practical point is that allowing ballot selfies could create a “risk of delay” at the polling stations, “as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile”. (5) In a brief concurrence focusing entirely on the issue of delay, Judge Guy makes the additional point that “with digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.” (7) He wonders, too, whether “the allowance of taking a selfie also include use of the ubiquitous selfie stick”. (7)

And then, there are the issues that I have already discussed here ― whether the absence of evidence of ballot selfies’ harm shows that there is no reason for banning them or, on the contrary, demonstrates the effectiveness of the bans as a prophylactic measure. Judge Sutton clearly thinks that the latter is the case. Moreover, “[t]he links between [voter corruption and intimidation] and the prohibition on ballot exposure are not some historical accident; they are ‘common sense'”. (5, quoting US Supreme Court precedent.) Chief Judge Cole, dissenting, takes the contrary view, as have other American courts that have addressed selfie bans.

For own part, without expressing an opinion as to which of these views is correct as a matter of U.S. law, I have more sympathy for Judge Sutton’s. While I have been dwelling on the importance of evidence in constitutional adjudication for some time now, and critical of restricting rights on the basis of assumptions no later than yesterday, the evidence is actually there, albeit that it is mostly historical. Moreover, a court should be able to pronounce on the issue of delay without waiting for an “experiment” to take place. Common sense can be an unreliable guide to adjudication, but ― absent evidence to the contrary ― courts should be able to rely on it sometimes.

Prohibitions of ballot selfies might seem counter-intuitive or even quaint. In the United States, they run counter to the very strong tradition of virtually untrammelled freedom of expression. While I sometimes wish that Canadians took more inspiration from that tradition than they do (for example when it comes to the criminalization of “hate speech”), this is one instance where a more even-handed weighing of competing interests might be in order. Judges Sutton and Guy provide a useful reminder of what some of these interests are.

L’Uber et l’argent d’Uber

Une poursuite contre Uber carbure à l’ignorance économique

Certaines personnes qui ont eu recours aux service d’Uber la nuit du Nouvel an ont payé cher. Très cher même, dans certains cas. Car, contrairement aux taxis traditionnels dont les prix sont toujours les mêmes, Uber pratique ce que l’entreprise appelle le « prix dynamique » ― un prix qui fluctue, parfois très rapidement, en fonction de la demande pour ses voitures qui existe à un endroit et à un moment donné. Puisque la demande était très forte et très concentrée à la fin des festivités du réveillon, les prix ordinaires ont été multipliés par un facteur parfois très élevé ― facteur dont un client qui commandait une course était avisé, et qu’il devait même entrer, manuellement, dans l’application afin de pouvoir passer sa commande.

Or, on apprenait vendredi qu’une des clientes d’Uber, Catherine Papillon, qui a payé 8,9 fois le prix ordinaire pour sa course, veut intenter un recours collectif contre l’entreprise, à moins que celle-ci ne la rembourse. Représentée par Juripop, elle prétend avoir été lésée par le prix « anormalement élevé[…] » qu’elle a payé. Quant au consentement qu’elle a donné en commandant sa course, elle soutient que celui-ci ne peut lui être opposé vu la lésion qu’elle a subie. Elle affirme, du reste, ne pas avoir compris ce que le « 8,9 » qu’elle a entré en passant sa commande voulait dire.

Patrick Lagacé explique bien, dans une chronique parue dans La Presse, pour les personnes dans la situation de Mme Papillon ne méritent pas notre sympathie:

La nuit du Nouvel An, vous le savez sans doute, est la pire nuit où tenter de trouver un taxi. J’ai personnellement frôlé l’amputation du gros orteil droit, un 1er janvier de la fin du XXe siècle, en tentant de trouver un taxi au centre-ville de Montréal pour me ramener à bon port, au petit matin. Des centaines, peut-être des milliers d’autres cabochons dans la même situation que moi cherchaient eux aussi des taxis, introuvables…

Un détail révélateur du récit de Mme Papillon suggère qu’elle aussi se retrouvait dans une situation similaire : elle « a expliqué qu’elle s’est inscrite sur Uber “en cinq minutes”, peu avant de faire appel à la compagnie dans la nuit du 31 décembre au 1er janvier ». On ne sait pas encore pourquoi elle l’a fait, mais on peut deviner, n’est-ce pas? (Et les avocats d’Uber ne manqueront pas, j’en suis sûr, de lui poser la question pour confirmer la réponse dont on se doute.) Alors, écrit M. Lagacé, quand les gens acceptent de payer un prix, fût-il exorbitant, qui leur est clairement annoncé, pour s’épargner la recherche futile d’un taxi qui n’arrive jamais, eh bien, c’est un choix qu’ils font et dont ils devraient assumer la responsabilité.

Le droit voit-il les choses d’une manière différente? Je ne suis pas civiliste, encore moins spécialiste du droit de la consommation. Je ne prétendrai donc pas émettre de pronostic sur l’issue de la cause de Mme Papillon. Je crois, cependant, pouvoir émettre une opinion sur ce que le résultat de ce recours devrait être si les juges qui en disposeront s’en tiennent aux principes élémentaires qu’il met en cause.

Ces principes sont non seulement, et peut-être même pas tant, moraux qu’économiques. Les biens et les services n’ont pas de valeur intrinsèque qui pourrait servir à déterminer leur prix « juste ». Leur prix sur un marché libre dépend de l’offre et de la demande. Il s’agit, en fait, d’un signal. Si un service ― par exemple une course en taxi ― commande un prix élevé, les vendeurs ― par exemple, les chauffeurs ― savent qu’ils feront beaucoup d’argent en offrant le service en question. Plusieurs vendeurs s’amènent donc sur le marché ― par exemple, dans les rues du Vieux-Montréal ― pour offrir leurs services aux acheteurs. En même temps, le prix élevé signale aux acheteurs que s’ils le veulent acquérir le service, il leur en coûtera cher. Ceux qui tiennent à l’obtenir le feront, alors que d’autres trouveront des alternatives ou attendront. C’est ainsi que le nombre de vendeurs et d’acheteurs s’équilibre, et que ceux qui sont prêts à payer sont servis rapidement. Uber prétend que ceux qui ont voulu utiliser son service le matin du Jour de l’An n’ont attendu qu’un peu plus de quatre minutes, en moyenne, grâce au nombre record de chauffeurs qui étaient sur la route. Personne parmi eux, on peut parier, n’a « frôlé l’amputation du gros orteil droit », comme M. Lagacé jadis. 

Son histoire est, par ailleurs, un bon rappel de ce qui arrive si les prix ne peuvent pas augmenter en réponse à une forte demande ― par exemple parce qu’ils sont fixés par décret gouvernemental, comme le sont les prix du taxi traditionnel. Puisque les prix n’augmentent pas, les vendeurs n’ont aucune raison supplémentaire d’entrer sur le marché, et il n’y en a pas plus que d’habitude. Si, en plus, le nombre de vendeurs est limité ― par exemple, parce que le gouvernement fixe un nombre maximal de licenses de taxi ― il ne peut pas augmenter pour répondre à une demande exceptionnelle par définition. Dès lors, c’est l’attente et la chance, plutôt que la volonté de payer qui déterminent qui recevra et qui ne recevra pas le service ― et les engelures s’ensuivent.

J’en arrive aux questions juridiques qui se poseront dans la poursuite contre Uber. Mme Papillon et ses avocats prétendront sans doute que le contrat qui fait en sorte qu’une course de taxi qui coûte 80$ au lieu d’une dizaine « désavantage le consommateur  […] d’une manière excessive et déraisonnable », ce qui, en vertu de l’article 1437 du Code civil du Québec, donne ouverture à la réduction de l’obligation qui découle de ce contrat ― en l’occurrence, du prix payé par Mme Papillon. Ils soutiendront aussi qu’il s’agit d’un cas où « la disproportion entre les prestations respectives des parties est tellement considérable qu’elle équivaut à de l’exploitation du consommateur, ou que l’obligation du consommateur est excessive, abusive ou exorbitante », ce qui permet également au consommateur de demander la réduction de ses obligations, en vertu cette fois de l’article 8 de la Loi sur la protection du consommateur. Ils auront tort.

Car penser que la prestation d’Uber se limite au déplacement de son client, c’est ignorer les principes économiques fondamentaux que je viens d’exposer. Uber ne fait pas que déplacer son passager d’un point de départ à un point d’arrivée. Avant même de pouvoir le faire, Uber s’assure d’abord qu’il y aura une voiture pour cueillir le client ― et qu’elle sera là en un temps utile ou, du moins, assez court pour que le client ne se gèle pas les extrémités. C’est ça aussi, la prestation d’Uber, et la raison pour laquelle les gens font appel à ses services même lorsque ceux-ci sont plus chers que le taxi traditionnel. Et c’est pour s’assurer de livrer cette prestation qu’Uber doit faire augmenter ses prix lorsque la demande pour ses services est particulièrement forte. Le recours de Mme Papillon, qui fait abstraction de cette réalité, est, dès lors, fondé sur l’ignorance des règles économiques de base ou sur l’aveuglement volontaire face à celles-ci. Si les juges qui se prononcent sur ce recours comprennent ces règles, ils le rejetteront du revers de la main.

S’ils souhaitent raisonner a contrario, les juges pourront, par ailleurs, se demander quelle serait la réparation qu’ils devraient accorder s’ils faisaient droit à la demande de Mme Papillon. Il s’agirait, de toute évidence, d’une réduction du prix payé ― mais une réduction jusqu’à quel point? Si un commerçant réussit à flouer un consommateur en lui faisant payer un prix exorbitant, mais qu’il remplit, par ailleurs, ses obligations en vertu du contrat, il semble juste de réduire le prix jusqu’à celui qui prévaut sur le marché. Or, y a-t-il un tel prix dans les circonstances qui nous intéressent? Le prix du taxi traditionnel n’a rien à voir avec celui du marché, non seulement parce qu’il est le produit d’un fiat gouvernemental, mais aussi parce que, de toute évidence, ce n’est un prix d’équilibre, c’est-à-dire un prix auquel l’offre et la demande se rejoignent. Au prix du taxi traditionnel, la demande est de loin supérieure à l’offre ― d’où l’orteil gelé de M. Lagacé. Comment un tribunal s’y prendrait-il pour déterminer le prix du marché en l’absence, justement, d’un marché ― autre que celui qu’Uber a créé? Il ne pourrait le faire que d’une façon parfaitement arbitraire, ce qui serait contraire à notre compréhension habituelle du rôle des tribunaux. (J’avais déjà soulevé un problème similaire en parlant d’un recours contre la SAQ, fondé, lui aussi, sur l’article 8 de la Loi sur la protection du consommateur.) Comment est-ce qu’un tribunal saurait, en fait, que le prix exigé par Uber n’est pas le prix du marché? C’est à Mme Papillon, en tant que demanderesse, de le prouver, me semble-t-il. Je ne vois pas comment elle pourrait le faire.

Un mot, en conclusion, sur la position de Juripop dans cette histoire. Cet organisme n’est pas un bureau d’avocats ordinaire qui défend la cause de ses clients, fût-elle guidée par la plus pure cupidité. C’est soi-disant une « clinique juridique », une « entreprise d’économie sociale », dont la mission consiste à « soutenir l’accessibilité [sic] des personnes à la justice ». Or, Juripop ne se place pas du côté de la justice en appuyant Mme Papillon. Car la justice ne consiste pas à se déresponsabiliser face aux conséquences annoncées d’actions qu’on a posées, comme elle cherche à le faire. Et la justice ne peut pas se réaliser dans l’ignorance des lois économiques. Comme le disait fort sagement Friedrich Hayek dans La route de la servitude, « [i]l peut sembler noble de dire, “au diable la science économique, bâtissons plutôt un monde décent” ― mais c’est en fait simplement irresponsable » (je traduis). Les québécois le savent, d’ailleurs: ce n’est pas réclamer justice que de vouloir le beurre et l’argent du beurre.

Silencing the Bullies

In my last post, I wrote about the decision of the Supreme Court of Nova Scotia in Crouch v. Snell, 2015 NSSC 340, which struck down that province’s Cyber-Safety Act, a law intended “to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.” Justice McDougall held that the statute both infringed the freedom of expression and could lead to deprivations of liberty not in accordance with principles of fundamental justice, contrary to sections 2(b) and 7 of the Canadian Charter of Rights and Freedoms, and was not justified under section 1 of the Charter. As I indicated in the conclusion of my last post, I believe that this was the right decision. Here are some thoughts about why that is so, and also about some deficiencies, or unanswered questions, in Justice McDougall’s reasons.

Perhaps the most interesting question Justice McDougall raises is whether the limits the Cyber-Safety Act imposed on the freedom of expression are “prescribed by law” within the meaning of section 1 of the Charter. Justice McDougall holds that they are not, because to issue a “protection order” meant to stop a person from engaging in cyberbullying a justice of the peace or a judge must not only find that that person engaged in cyberbullying in the past, but also that “there are reasonable grounds to believe that [that person] will engage in cyberbullying of the subject in the future.” (Subs. 8(b)) Justice McDougall is concerned that there is no indication in the statute as to what those reasonable grounds might be, and that the procedure, especially the ex-parte procedure before a justice of the peace, will not yield sufficient evidence on the basis of which to decide whether the “reasonable grounds to believe” requirement is met.

I find this reasoning intriguing and perplexing at the same time. It seems to me that Justice McDougall’s real concern is not with the vagueness of the statute’s words ― as is usually the case when courts ask whether a limitation of Charter rights is “prescribed by law” ― but with the procedure the statute creates. The concept of “reasonable grounds to believe” already exists in criminal law without attracting censure for vagueness and, as Justice McDougall himself observes, judges are sometimes asked to determine whether there exists a risk that an offender will re-offend in the future. But such determinations are made on the basis of substantial evidence submitted by both parties to an adversarial process. Here, by contrast, the decision must be made on the basis of (potentially flimsy) evidence submitted by one party alone. I agree that this is disturbing, and ought to be regarded as constitutionally problematic, but I’m not sure that “vagueness” is the appropriate name for this problem. Nor is it obvious that any other part of the Oakes test ought would be a better place to address the issue that Justice McDougall raises. Perhaps we need to recognize a procedural element to the “prescribed by law” prong of section 1, in keeping with Jeremy Waldron’s insight that the Rule of Law, and arguably the very concept of law, are crucially dependent on the existence of certain procedures through which the application of legal norms can be channelled and contested, as well as on formal requirements such as publicity and intelligibility that are better captured by the notion of vagueness.

Another question worth asking about Justice McDougall’s reasons is whether he is correct to find that the ex-parte process created by the Cyber-Safety Act is not rationally connected to the Act‘s objectives, except in emergencies or in cases where it is impossible for a victim of cyber-bullying to identify the perpetrator. Courts have seldom found that a law was not rationally connected to its purposes ― it is usually a low bar. Again, I am sympathetic to Justice McDougall seeing a procedure that give no notice to a person whose writings ― no matter how troublesome ― are about to be censored as a serious problem. Still, I’m not sure that, problematic though it is, an ex parte procedure is an irrational response to legislative concerns with timeliness and accessibility of remedies against cyberbullying, which Justice McDougall acknowledged in his decision. It will be interesting to see if appellate courts approach this issue in the same way as Justice McDougall did.

So much for the procedure created by the Cyber-Safety Act. As disturbing as it is, its contents is, if anything, even more troubling from a constitutional standpoint. Somewhat curiously, Justice McDougall does not have all that much to say about the scope and effect of the Cyber-Safety Act, which he addresses under the headings of minimal impairment and balancing between the Act’s positive and negative effects. What he does say, however, is damning indeed: the definition of cyberbullying, in particular, he finds to be “a colossal failure,” [165] catching “many types of expression that go to the core of freedom of expression values.” [175] That is true, but the point might bear some elaboration.

Take another look at the statutory definition of cyberbullying. It

means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way. (Par. 3(1)(b); brackets apparently in the original.)

Think about it. Any communication using computers or cell phones that “ought reasonably to be expected to cause … damage to another person’s … emotional well-being” ― anything that a reasonable person ought to know will make anyone else, anyone at all (since the statute does not in any way restrict who the “other person” whose well-being mustn’t be harmed), upset or feel bad counts as cyberbullying and is liable to be censored. As Eugene Volokh points out in an important article (as well as a bunch of posts on the Volokh Conspiracy) that the defenders of ant-cyberbullying legislation would do well to read, sometimes telling things that will have that effect on people is necessary to explain your own feelings or actions:

[i]f you want to explain to your friends why you’re depressed, or why you’ve broken up with someone, or why you’re moving out of town or taking another job, you might need to tell them about your husband’s cheating, your ex-boyfriend’s sexually transmitted disease, your ex-girlfriend’s impending bankruptcy, or even your mother’s dementia. (761-62)

Sometimes, indeed, you even want to make people feel bad, and with good reason:

speech remains valuable to public debate even when the speaker is motivated by hostility. Often much of the most useful criticism of a person comes from people who have good reason to wish that person ill—if you are mistreated by a politician, religious leader, businessperson, or lawyer, you might acquire both useful information about the person’s faults and resentment towards that person. (774)

And of course, quite apart from any contribution to the public debate, being able to tell why you are aggrieved at someone is important to self-expression. It is often said that people should not have to suffer in silence. But under the Cyber-Safety Act, they are likely to have to do so, since it may well be impossible to explain their emotions in ways that will not hurt the feelings or injure the reputation of the person they blame ― correctly or otherwise ― for their suffering.

Justice McDougall hints at these issues when points at the absence of defences such as truth in the Cyber-Safety Act, and notes that it applies to private and public communications alike. However, I think that it is important to explain in more detail, and with examples, why the extremely broad definition of cyberbullying in this legislation is so problematic. Moreover, even adding the defences of truth absence of ill-will would be enough to remedy the problem. The former is inapplicable to statements of opinion. The latter is insufficient for the reasons explained by prof. Volokh.

Beyond its (very real) unfairness and procedural defects, the fundamental problem with the Cyber-Safety Act is that it seeks to censor communications which the law has never regarded ― and, indeed, still does not regard ― as wrongs, whether civil or criminal. A statement need not be defamatory or otherwise tortious, much less amount to hate speech or be otherwise criminal, to fall within the definition of cyberbullying. The legislature, presumably, thought that this is not a problem so long as it was not imposing a penalty for the making statements considered to be cyberbullying. Whether the requirements that can imposed as part of a “protection order” issued pursuant to the Cyber-Safety Act, which can include not only prospective and retroactive censorship, but also a ban on using certain devices or online services really are not penalties is questionable in my mind, but let’s put that to one side for now. Even if the legislature is right that “protection orders” can be fairly characterized as preventive rather than punitive in nature, what exactly is it that gives it a right to prevent people from doing things that in its own view are not actually wrong? The legislature itself is acting like a bully, albeit a well-intentioned one. It’s a good thing that Justice McDougall silenced it.